Pre-Empting the EU

While trying to group chat with a couple of friends, I discovered two things. 1) It's not possible on Gmail alone. 2) My Vista PC doesn't appear to have come with a Microsoft IM program. Instead of pre-installing it, Microsoft put "Windows Live Messenger Download" on my Programs menu. It looks a clever dodge of antitrust regulators' demands that Microsoft not abuse its operating system dominance by putting all of its software on the OS. Instead, customers have to take the step of downloading it, just as they have to download competitors' software. Microsoft has retained only the wee advantage of having their software be just a little more accessible than others'.

At least this does make a bit more meaningful the standard end user license agreement greeting "THANK YOU FOR CHOOSING MICROSOFT!"

You Know You're Deep in Blawgging When...

You wince at seeing

"The lower courts, and maybe even the executive branch of these states, may say, let's wait till we hear definitively from the U.S. Supreme Court before we rush forward with an execution," said Doug Merman, a law professor at Ohio State University.

in an MSNBC story. Other people who hear about budget cuts in the news media bemoan the loss of foreign bureaus and the overuse of wire stories, but what I really hate is the reduction in copy-editing.

And for the best attempt at please-make-my-inaccessible-subject-interesting, I nominate Georgetown prof David Langevoort, who referred to the Supreme Court's review of Stoneridge Investment v. Scientific-Atlanta decision as "securities law's Roe v. Wade."
Decision on whether to apply Central Bank of Denver's interpretation of 10(b) to the situation in which the defendants may have been more than aiders and abettors
≠
decision on whether to apply Griswold/Baird's interpretation of the Constitution to the situation in which a woman sought not to preclude pregnancy but to end it once commenced. Neither an affirmation nor a reversal in Stoneridge is likely to do more than either increase the disclosure and litigation burden on corporations or make Barney Frank hold forth on the need to change the statute to make clear that it applies to all reporting companies and not just the one with which investors have privity for their suit. But unless we're going either to extend Company X's duty of disclosure to its shareholders, to all those who have dealings with Company X that might allow Company X to be untruthful, or to overrule a quarter century of precedent on what Rule 10b-5 means, Stoneridge really looks like a slam-dunk. The 8th Circuit disposed of it in 9 pages. Then again, there's nothing like seeing the Washington Legal Foundation's explanation that the Supreme Court should protect investors by disabling them from suing companies that engage in deceptive transactions to make me think that the plaintiffs must have some argument in their favor.

After Columbia Protestors Rushed the Minutemen

Many of the people opposed to Ahmadinejad's appearance at Columbia brought up an embarrassing incident last fall in which the university failed to secure an event at which the anti-immigration Minutemen spoke, which failure allowed anti-Minutemen students to run onstage with their signs and disrupt the speakers. For those who hadn't actually followed what happened afterwards, the remark in a Washington Post story about Columbia president Lee Bollinger that "Bollinger disciplined the students" may have been puzzling.

Quick summary via the Columbia Spectator:

University May Charge Four With Serious Violations, Oct. 17, 2006.

Activists Call for Students' Expulsion, Jan. 16, 2007.

"The Minuteman Project sued a California community college and its former president for violation of First Amendment rights and the California Constitution ... The lawsuit requests a temporary restraining order forcing the institution to immediately allow the Minuteman Project and other similar organizations access to campus facilities." Jan. 23, 2007

CU Sends Minutemen Note Expressing Regret, Feb. 27, 2007 (which sounds weirdly like the Minutemen's grandma passed away)

CU Refunds Republicans for Speech, March 1, 2007.

And a year-in-review piece published May 7, 2007 noted,

The release of disciplinary decisions for the students who stormed the stage has prompted many students to push for a review of the University's disciplinary system regarding protests, which hasn't been changed since the 1960s.

The University announced in December that students involved in rushing the stage would be tried under the Rules of University Conduct, University-wide rules that apply strictly to students who participate in protests on University property. All of the students who were charged faced simple rules violations, the lighter of two levels of punishment under current rules. Simple violations are dealt with through Dean's Discipline, a process by which a small group of deans hear a student's case and make a decision without public input.

When results of the trials were released, eight students had been charged with simple violations. At the end of the disciplinary process, three students, all of whom are Latino, received censures, which is a harsher punishment than the disciplinary warnings received by the other five. As a result, some students have accused the University of unfairness and racism.

"We need to have pretty drastic changes if we're going to have anything like justice," David Judd, SEAS '08 and one of those who was given a disciplinary warning, said.

In April, the Student Governing Board called on the University to review its current procedures to evaluate if there is a better and more transparent process by which students can be tried.

"The system wasn't transparent," said incoming SGB president Jonathan Seigel, CC '08. "You can't have a secret justice system. What's the point of having a disciplinary process at all if no one believes in it?"

From what I gathered from the articles, the disciplinary warnings were given to Monique Dols, David Judd, Andrew Tillet-Saks and Ryan Fukumori, while Martin Lopez, Karina Garcia and Cosette Olivio were censured, although Lopez allegedly did not climb on stage. Kevin Hahulski kicked Lopez in the head while Lopez was standing on the auditorium floor near the stage.

In Iran, LGB, No; T, Yes

Yes, Ahmadeinjad, there is an Iranian homosexual. Now if anyone can point me to a fuller explanation of the phenomenon briefly mentioned in a New York Times article, I'd really appreciate it:

But Iran has also taken the unusual step of encouraging sex change operations for those with homosexual tendencies. While religious authorities here view homosexuality a clear sin, transsexuals are considered ill and in need of the help that such an operation can provide.
Muhammad Mehdi Kariminia, a midranking cleric and university professor at Mam Khomeini University in Qum, who wrote his doctoral thesis on transsexuals in Iran, said Muslim clerics could not show leniency or forgiveness for homosexuals because the Koran explicitly labels sodomy sinful.
"There is a thick wall between homosexuals and transsexuals," Mr. Kariminia said. "Transsexuals are sick because they are not happy with their sexuality, and so they should be treated. But homosexuality is considered a deviant act."
But the gays interviewed said that they did not believe the wall was that thick.
Reza said he knew of gay men who had changed their sex so that they could be recognized by the government as transsexual and mingle with men more easily.

Either Mr. Kariminia doesn't understand what "transsexual" means, or he was mistranslated (more likely the latter). Transsexuals may be quite happy with their sexuality in the sense of their sexual orientation, i.e. what they like to do sexually and with whom they want to do it. What they are unhappy about is the sex role assigned to them, hence the term "sex reassignment."

Americans are at the point where we're probably more comfortable with the idea that a woman can lust after another woman (actually, going by mainstream porn-inspired culture, we're really comfortable with this idea) than with the idea that a person we identify as female considers herself to be male. I would like to think I am accepting of transsexuality, but my puzzlement at the notion that Iranians find male-female sexual relations to be fixed while deeming sex to be highly mutable makes me think I'm among the U.S. majority in still "getting" non-straight sexual orientation more easily.

That said, congratulations to Denise and other campaigners at the University of Michigan for convincing the Regents to prohibit discrimination on the basis of gender identity or expression. No matter where our kneejerk intuitions may be at the moment, Americans should not force one another to fit into a narrow conception of what "men" or "women" do, whether it is whom they find sexually attractive or how they dress and speak. I'm still convinced that this is all a form of sex discrimination because it punishes a person of one sex for what would be permissible in the other, but as the courts mostly don't agree, the next best thing is to get each form of sex discrimination specifically outlawed.

Today / 09.29.07

Will you still need them, will you still feed them... Happy 64th birthday to former presidents Mohammad Khatami of Iran and Lech Wałęsa of Poland.

Attack of the 50-Foot Straw Man

Prof. Ilya Somin of George Mason University School of Law has recently posted a series of arguments against any sort of national mandatory service program. By a "mandatory national service program," Somin means the broad proposition of mandating that young people at some point after high school participate in a civilian work service program for a year or two, perhaps working in national parks, teaching, or some other national service (think combining the draft with Americorps). I am not certain that there is a specific proposal, only vague ideas along the lines of those European nations that offer civilian service as an alternative to mandatory military service.

Somin clearly does not like this idea. In a tone and approach that I think can reasonably be labeled as a bit histrionic, he comes close to comparing the proposal to slavery, suggests that it might someday be used as some sort of private forced labor pool, and states his belief that the proposal targets the young because they are politically weak.

Of course, reasonable people can disagree on whether there should be a mandatory national service program. But by misrepresenting the aims of a hypothetical national service program, suggesting absurd comparisons to slavery, refusing to acknowledge the arguments in favor of a program and generally fighting the shadows of the proposal rather than the proposal itself, Somin reduces his anti-national service argument to just another libertarian rant far out of the mainstream of American legal and political thought.

Full disclosure: in a broad, non-particularized sense, I have favored this idea in the past, and continue to support it. I believe that a consequence, perhaps unintended, of mandatory military service was a boost to our sense of civic duty. I believe that a shared experience of duty by young men from various parts of the country and ethnic, educational and socioeconomic backgrounds may have contributed to any number of public goods: an improved understanding of America by its citizens, a more developed ideal of service to one's community, and an opportunity for young people to break from the rigidity of their local upbringing and experience a broader range of the American experience. Thus, I wonder if a mandatory program of civic service, whether as an alternative to a military draft or not (which I also vaguely support), might have similar effects.

I think many other proponents of such a system feel similarly that the main benefit would be the contribution to the national civic psyche. Which is why I was astounded when I saw no mention of this point in Somin's extensive writing on the topic. What confused me even further was when he proposed that the national service proposals target the young instead of the old because young people are politically weak and therefore susceptible to being lured into this scheme for forced labor. Inherent in this suggestion is the idea that the proponents of the system somehow aim to benefit from the labor itself in such a way as to justify the system.

Now, I realize that Somin may think many policymakers are pretty dumb, but I do not know of a single person who thinks that a mandated national service program including living wages and possibly housing options for all Americans of a particular age would be a more efficient means of obtaining labor than simply contracting for it on the open market. The costs will be incredible... a point which Somin makes elsewhere. The purpose is the hypothetical effects that such a program will have on the young people, not the benefit of the labor (which presumably will cost more than labor that is simply contracted for). Thus, it's clear why the program targets the young: they are the group the state would want to impart the lessons of the service to.

So why does Somin twist this into a straw man? Even the WSJ opinion page picked up on this, and turned the piece into an op-ed with the threatening title "Uncle Sam Wants You, Gramps." Are the proponents of a national service program really threatening to target Grandpa? Where is the support for that, except in the paranoid delusions of the WSJ editorial board and Prof. Somin?

While Somin is careful enough to not explicitly compare a national service program to slavery, he does certainly leave the door wide open for others to do so. A mandatory service program (or, if you and/or Somin like, "forced labor) is obviously not slavery; slavery is absolute control over the individual, more akin to a property interest than to the state's police powers to order certain behaviors. While forced labor and involuntary servitude might be elements of slavery, slavery is a far more pernicious and morally repugnant state. The two really are not even comparable.
The distinction is particularly clear when one considers the times when the state does compel labor. Compulsory education, military service and punishment are all areas where the state explicitly forces labor. Other areas, such as child support and taxes, are areas where the government implicitly compels labor. Further, there are areas like jury duty, where the state compels labor for the resolution of a civic duty. Are these all akin to slavery? Most Americans would disagree, as does all branches of our democratic government.

Somin tries, then, to suggest that a national service program would violate the 13th amendment prohibition against involuntary servitude. As a basic proposition, I think this argument has some merit. But again, Somin refuses to acknowledge the viewpoints contrary to his own, instead positing that there are no exceptions to the prohibition (except for the listed exception of punitive forced labor for convicts).

However, there are two arguments for why that proposition is wrong. One, there are clearly the examples above where a government interest allows for compulsory labor (and which courts have upheld, even under 13th amendment challenges... see here and here). Second, if we were to interpret the 13th amendment, including its prohibition on involuntary servitude, as being without unlisted exceptions, it would be the only amendment that we found does not contain some exception for a valid governmental interest.

It would be great to hear from a law prof on how they think an interesting question like this might be resolved. Unfortunately, Somin is incapable of that analysis, since he is obviously either not willing or not able to analyze the merits of competing viewpoints, blinded as he is by his own libertarian knee jerk reaction.

License to Misrepresent

Is apparently what you get when you suffer a horrible personal tragedy that has larger implications for the nation. I'm doubtful about Gov. Spitzer's decision to allow people to get driver's licenses in New York without having to prove their legal status, but this is really ridiculous:

Peter Gadiel, the president of 9/11 Families for a Secure America, whose son died in the World Trade Center, released a scathing statement even before the official announcement yesterday.
"Governor Spitzer will demonstrate abject stupidity and breathtaking disregard for the victims of 9/11 if he hands these powerful ID's to people who sneak across our borders," he wrote. "Terrorists here illegally used licenses to kill my son and thousands of others in the World Trade Center; if they do it again using New York licenses issued by this governor, the blood of the victims will be on Mr. Spitzer�s hands."

I draw the following facts from the Federation for American Immigration Reform (FAIR), which is a strong opponent of illegal immigration:
1) None of the 9/11 terrorists snuck across the border. They all were issued visas to enter the country. On an airplane, even.
2) Therefore, a driver's licensing system that only kept out illegal immigrants would not have prevented any of them from obtaining a driver's license. Mohamed Atta, one of the more notorious, was arrested in Florida for driving without a license, and subsequently obtained Florida driver�s license.
3) Almost all of the terrorists were still legally in the U.S. on September 11; of the 19, only three had fallen out of visa status.
4) Although many of the hijackers had multiple fraudulent licenses in order to avoid being caught on the Watch List, this was a function of their being, you know, suspected terrorists, and not relating to their immigration status.

Or to put it more briefly, DIFFERENT SCARY BROWN PEOPLE. Could we perhaps criticize Spitzer's plan on its own demerits rather than making up stories about how September 11 occurred?

Justice Thomas in NYC on Oct. 16

The New York Lawyers chapter of the Federalist Society and the Heritage Foundation are cosponsoring an event with Justice Clarence Thomas in New York City on October 16, at 11:30 a.m. Justice Thomas will be speaking on his new book, My Grandfather�s Son: A Memoir. The cost for tickets is $30.

Harvey Birdman Smiles Upon This

Practitioner Scott H. Greenfield has an amusing rant against the Super Lawyer advertisement that ran in the same New York Times magazine as the Justice Stevens profile. SHG notes, "In New Jersey, Super Lawyers has been outlawed. It was deemed unethical and a scam on the public. Whether it's any more of a scam than any other lawyer advertising is unclear, but the superlative nature of the list does tend to suggest a great deal about a lawyer that may not be exactly accurate."

If the New Jersey courts approve this as consistent with the First Amendment, this will bring them into conflict with Virginia, and either the conflict or a suit filed in federal court may precipitate a resolution of the issue through the Supreme Court.

Being a Nazi About Adarand

In Jeffrey Rosen's profile of Justice Stevens, there is a discussion about the latter's views on affirmative action:

Consider affirmative action, an area in which many people believe Stevens became more liberal. In 1980, he dissented from the court�s decision upholding racial preferences in federal contracting, explosively comparing them with the Nazi laws excluding Jews from citizenship. More recently, however, he has voted enthusiastically to uphold affirmative action in universities and public-school enrollment plans, comparing them to welcome mats rather than no-trespassing signs. To Stevens, however, his views have been consistent. "There's a tremendous difference in using affirmative action when you get a group to build a highway and affirmative action in the educational context," he told me. "I think my rhetoric was probably a little strong," he continued, but the federal law authorizing racial preferences for highway contracts was a "slapdash statute" that was based on pork-barrel politics, benefiting one group of contractors rather than citizens as a whole. In schools and universities, by contrast, "the whole student body profits from having diversity in the classes. So I really don't think I've changed my views about this."

I'm looking at this superficially, without reading his opinions in the relevant cases, but frankly the above distinction between Stevens-on-federal-contracting (affirmative action BAD) and Stevens-on-education (affirmative action GOOD) does not seem accurate. Look at the almost neverending story of Adarand Constructors, which is exactly about racial preferences for highway contracts, and in which Stevens has supported the government's policy of giving the primary contractor additional money if he hires minority subcontractors.

When the majority in Adarand v. Pena held against such a preference, Stevens's dissent cited his dissenting opinion in Fullilove v. Klutznick, the 1980 case he mentioned, but never reconciles with it. Instead, he holds up the Fullilove plurality opinion and other pro-affirmative action decisions as precedents the Court is bound to follow. If Stevens wants to argue that he has been consistent on the procedure the Court should use in its decision-making (e.g., adherence to a 15-year-old line of precedent), that's fine, but as I understand the cases, he has not been consistent on the substantive law the Court should apply in its decision-making.

Something to Be Said for Bluebook Style Sourcing

I have complained about how the Bluebook's Rule 18 deals with blogs, but I must give the Evil Quadrumvirate credit in one respect: they recognize the potential for multiple authorship on a single blog. And people seem to be following Bluebook style at least in this respect, as the citations to De Novo in the aforementioned law reviews all noted which author had written the particular post being cited.

Contrast with Del. Timothy D. Hugo (R-Fairfax) of Virginia, who cited the Democratic diary site www.RaisingKaine.com as a source for his attack advertisement on his Democratic opponent, Rex Simmons. Del. Hugo sourced the negative remarks to the site as a whole, rather than to the particular commentator, leaving viewers with the false impression that the site's owners/ management -- who began the website in order to support now-Gov. Kaine, and have expanded it to cover progressive Virginia politics generally -- were opposed to Simmons. Of course, nothing could be further from the truth. From the Washington Post article:

In an interview, Hugo defended the ad and said he will not pull it. He said the posting on Raising Kaine was not anonymous because it is widely known that "Pitin" is a Democratic activist who supported Simmons's opponent, Morris Meyer, in the Democratic primary. "It is not anonymous to me," Hugo said. "A lot of Democrats have said that Rex Simmons runs an appalling, negative campaign."

However, instead of sourcing the comments to "Nate de la Piedra, executive director of Next Generation Democrats," Hugo chose to source the comments to the site as a whole. His defense? "Hugo campaign advisers stressed that Pitin's entry is fair game because blogs are ultimately responsible for the comments that are posted on them."

Er, in what sense are blogs "ultimately responsible for the comments that are posted on them"? This isn't clearly true as a matter of, say, defamation law, particularly for a heavily trafficked site where no one is checking every post and comment. Diary sites like Raising Kaine have set up as quasi-newsstands; while the owner of the stand has his own opinions, they may not be reflected in everything purveyed there, and though he has no legal obligation to offer publications with which he disagrees, he also has no legal obligation to offer only publications with which he agrees. Even if Raising Kaine could be held legally liable for every word on the site, that still doesn't excuse the failure to source a statement to its known speaker.

"[Hugo campaign advisors] also said that much of future political advertising, especially in local races, probably will be sourced to blogs because that is where candidates and their supporters are migrating."

Their attitude is a good way to kill that trend. If the people who host websites have to fear that they will be held "ultimately responsible" for every comment made there, they have no incentive to allow anyone except themselves to speak. That reduces the ability to build a useful political community; candidates won't be hearing from their supporters (or opponents), and supporters are less likely to visit the site repeatedly if it offers no opportunity for stating their own opinions through diaries or comments.

Let's Imprison and Deport the Employers, Not the Immigrants

If physical and psychic stresses should excuse someone from penalties for a crime, but the desire to aid the stressed person while profiting oneself shouldn't, then I don't understand conservatives' enthusiasm for imposing massive penalties on illegal immigrants while punishing employers so lightly and infrequently that hiring undocumented workers continues to make economic sense.

After all, the illegal immigrant frequently is facing many physical and psychic stresses, including deprivation not only for herself but for her dependents as well. Why do we insist on deterring the problem of illegal immigration at the outset, when these people seem to be ready to brave armed Border Guards and Minutemen in order to reach America? They're desperate, and desperate people are difficult to dissuade.

W&L Federalist Bridget Fay/ theobromophile defends Fred Thompson's abortion position as follows:

The insane campaign that won�t die: feminists still present pro-lifers with the false dichotomy of infantalising or imprisoning women. Fred Thompson announced that he wants abortion to be illegal and to imprison doctors. He opined that women who abort during the first three months of pregnancy should not be imprisoned. So-called feminists, predictably, threw a fit.

As the pachyderm stated in a previous post on this subject, the pro-abortion logic on this point is flawed. It turns criminal law on its head: instead of prosecuting based on the mens rea of the perpetrator, the sanctions would be based upon the victim and the identity of the perpetrator. (Well, this is some of the theory behind hate-crime law, which is equally misguided.) Furthermore, a law can rationally penalise one actor and not another: for example, many states impose much higher penalties on drug dealers than on drug users, under the belief that the latter group is victimised by the actions of the former. Finally, the so-called feminists predicate their pro-abortion beliefs upon the pain, discomfort, and emotional difficulty of pregnancy, yet do not permit pro-lifers to use any of those as mitigating factors. (Ericka Anderson has more.)

Fred�s position is quite sensible. He does not want to prosecute women who get pregnant and seek illegal abortions; however, his sympathies are limited when women have been pregnant for several months and then decide that they don�t want to remain in that situation. It does not patronise women to refuse to imprison them; it only acknowledges that physical and psychic stresses of pregnancy are experienced by the pregnant woman, not her abortion doctor.

Being one of those so-called feminists, I'll apply some of my past arguments on this issue to theobromophile's statement.

1) In general, the criminal law looks at an individual's mens rea. If a specific woman who requested an abortion can show that she was not capable of understanding right and wrong at the time she had the procedure, then certainly she ought not be imprisoned. Nor should she if she had the baby and drowned it, if she similarly couldn't comprehend right and wrong while she was pushing its head underwater. What does the individualized determination of mental health does that have to do with legislation, which is one-size-fits-all? To classify all pregnant women as essentially insane is exceedingly dangerous.

Forget infantilization -- even juveniles face penalties and can be tried as adults. It's the crazy who get the free ride that Thompson and theobromophile believe all pregnant women deserve. And even NGRIs tend to get shuffled to the loony bin; indeed, the looseness of mental health law often allows them to be detained for longer than they necessarily would have been had they been found guilty and sentenced. They also may be forcible medicated.

In contrast, pregnant women are a special kind of crazy that allows them to go free, get pregnant again and re-run the whole cycle if they find another abortionist stupid enough to help them.

2) Certainly a law can penalize one actor more than another. A state could choose to punish only drug dealers and not drug users at all, which is a policy many people have urged. I'm guessing these are people who believe the supply is more important than the demand. Personally, I believe that whether it's drugs, illegal labor, abortions, whatever, as long as there's a demand with money in hand, the market will produce a supply.

Indeed, there's a commerce clause argument for federal legislation that prohibits commerce rather than use, and I've made a similar argument with regard to sex toys, in that the state has a police power to regulate commerce in something, including banning such commerce, but not to ban the product or service itself if freely given.

However, I assume that Thompson would want to imprison doctors who gave free abortions, yet would not punish women who self-aborted (which, if the doctors had any sense of self-interest, is what would happen as all the doctors refused to perform abortions, knowing that their patients have no reason not to narc on them). Thus it does not appear to be either profit or the act of performing the abortion that's penalized. So what will be the crime be -- the performance of an abortion on any person except oneself? That's going to create a massive incentive for abortionists to become helpful assistants to self-abortions; expect a black market in RU-486 to explode.

3) If "pain, discomfort, and emotional difficulty" should be used "as mitigating factors" not merely to decrease the penalty for a crime on an individualized basis, but to declare that it is no crime at all, we are back to my absurd claim at the beginning of this post: illegal immigrants are under a hell of a lot more stress than the average hiring manager at Tyson's Chicken, so we should make the former's crime unpenalized but the latter's ground for heavy penalties. Heck, one of the most reviled groups of illegal immigrants are the women who know they're pregnant and scoot across in time to have an "anchor baby," a kid who has birthright American citizenship. Should those women be excused for breaking our immigration laws because of the emotional difficulty of pregnancy? I'm guess that the get-out-of-jail-free card won't apply for them, even though their impulse seems a lot more laudable than the abortion-seekers; they're trying to make their baby's life better, not end it before birth.

One could argue that proving the hiring manager knew the person was an illegal immigrant is difficult, but if Thompson has any pre-pregnancy exception to his abortion ban -- such as cases of rape and incest -- how do we propose to prove that the abortionist wasn't told by his patient that she had been raped by her cousin but he was the provider for her family and so she couldn't report him to the police without a loss of support to all?

theobromophile's framing of the women who will go scot-free for getting first-trimester abortions under Thompson's plan is very peculiar -- she refers to an interest in penalizing them as "picking on pregnant ladies." Well, no. Telling a pregnant woman that if she wants an abortion, she's doing it herself with a wire hanger, seems to me like picking on pregnant ladies. Telling a no-longer-pregnant woman that if she asked for an abortion knowing that it was against the law, she's going to jail, is picking on post-abortion women. But it's not a surprising rhetorical move: pregnant ladies, sympathetic propagators of the human race; no-longer-pregnant ladies, merely women, and no reason to care about them.

Maybe it's because of all the doctors in my family, but I just can't get over how conservatives want to scapegoat physicians. If my cousin or my little sister (both currently in medical school) have a woman tell them that if they don't help her with an abortion, she'll perform it on herself, I would like for their first reaction to be to find a way for the woman to complete her pregnancy. I assume that if Thompson doesn't want to imprison women for having had abortions, he's not going to advocate having pregnant women detained in state custody until they deliver, so they'll have to convince her that termination is not the right choice.

However, if she is determined to have an abortion, I would want them to help her to have a proper medical abortion that is the least physically traumatic for her and the fetus. I don't want them telling her, "Sorry, I'm not going to jail for you in case you, the nurse or someone else rats me out for doing this." Gratitude is not a dependable guarantor of silence. Should the woman later be convinced by theobromophile that her abortionist actually was an evil manipulator, she's giving up that name without a second thought.

Incidentally, if Fred Thompson's enforcers are reading this, let me say that my cousin would have the "Sorry" response, my little sister might not. She might decide this is her heroic moment to do something for another woman. Oh well, at least if I make myself useful at the trial of one of family members who is a physician, I might be forgiven for going into law...

Ahmadinejad as Abuse of Discretion

I assume we can dispose of actual First Amendment arguments as to whether Columbia University's School of International and Public Affairs ought to invite Iranian president Mahmoud Ahmadinejad to speak, or whether Stanford's Hoover Institution ought to appoint former Secretary of Defense Donald Rumsfeld as a be a visiting scholar, having previously served on Hoover's board of overseers. Both are private organizations and thus can censor or encourage speech at their discretion.

The question therefore is about the underlying values of the free speech, e.g. the marketplace metaphor (which I identify with Justice Holmes) that one must allow people to speak in order to determine whether their claims have worth, and the town meeting (Alexander Meiklejohn) in which one must allow people to speak so that they can convince or be convinced. There also is the quasi-religious notion of free speech, that people must be able to speak in order to self-actualize, but given that neither Columbia nor Stanford has offered me what they offer presidents and defense ministers, clearly the importance of the speaker's voice to herself is not what they care about. This isn't Hyde Park; this is a large auditorium at Columbia, and a prestigious position at Stanford. So I suppose the question is whether these universities need to have Ahmadinejad or Rumsfeld present in order to increase the ideas on offer in the marketplace, or to give them the opportunity to convince others or be convinced themselves.

Because neither Ahmadinejad nor Rumsfeld strikes me as an open-minded sort of fellow, I am doubtful that they will be convinced of anything themselves by engaging with alternative viewpoints. Columbia University president Lee Bollinger's determination to open Ahmadinejad's forum with "a series of sharp challenges to the president" is laudable, but seems likely to be ludicrious in the execution. I don't closely follow Iranian government policy, much less believe in it, and I can think of facile justifications and evasions for every issue that Bollinger intends to raise. Ahmadinejad has heard it all before; probably the only way to get something like honesty from him would be to ask something shockingly inappropriate. And if Rumsfeld's belief in his own righteousness has not been shaken by how the war on terror has unfolded thus far, then a year with his conservative compatriots at the Hoover Institution seems unlikely to put a crack in it.

Should Ahmadinejad and Rumsfeld be given the opportunity to convince others? Rumsfeld seems a lot more likely to be able to convince some of his prospective audience than Ahmadinejad will be. If nothing else, the former are likely to be more receptive than the latter. One can expect Iraqis to have put aside their differences and formed a functioning nation, and still be intellectually respectable, albeit rather naive. I'm sure Rumsfeld can argue convincingly that if only the Left hadn't given aid and comfort/ Iran hadn't interfered/ he'd been permitted to be more aggressive in securing borders and punishing insurgents, Iraq would be the oil-rich version of MacArthur's Japan.

To take only one of Ahmadinejad's beliefs, Holocaust denial is simply not permitted in America -- not in the same sense that it is civilly impermissible in Britain, nor criminally impermissible in France, but socially impermissible. It's not seen as merely stupid, as the Rumsfeldian position is seen by many, but actually a moral wrong against Holocaust victims, survivors and their families. I am assuming here that Ahmadinejad would be seriously attempting to make a good argument for his positions. However, as noted above, he's more likely to evade the "challenges" to the positions he knows won't fly with any member of the audience.

Iran's pursuit of nuclear ambitions in opposition to international sanction is a different matter. Both those with a general opposition to nukes, and those who believe that Team America, World Policeman should be the sole holder of nukes, perceive developing nations' pursuit of nuclear technology as dangerous. However, people from those countries often see the matter quite differently. When Clinton put sanctions on India and Pakistan, my dad was angry because he saw this as high-handed indifference to India's safety (and as far as we know, India hasn't be handing nuclear technology around to the axis of evil, while Pakistan...). For people not raised on American exceptionalism, the notion that other nations ought to be prevented from developing the same stuff the U.S. has is infuriating.

So both Rumsfeld and Ahmadinejad probably would be able to convince some people who heard them that they were right, which brings up the marketplace: are these intellectual goods unfit to be sold in the universities' precincts? Are their ideas so wrong, or are the sellers such bad men, that they cannot join the stalls?

Here the advantage goes very much to Rumsfeld. If his ideas are toxic, they're nonetheless ones that have been well-publicized in America already, and he wasn't a sufficiently awful person to keep his boss from getting reelected in 2004. I find it difficult to say that after being Bush's Secretary of Defense, the imprimatur of the Hoover Institution means much one way or the other. It's an avowedly conservative entity taking in a Republican refugee -- no surprise.

Ahmadinejad is a quite different case. His ideas that are most likely to be convincing to others, such as the justice of Iran's nuclear ambitions and the unfairness of international opposition, are the ones that have gotten least play in America. Crazy S.O.B. who denies the Holocaust and helps terrorists and supports a theocracy that punishes sex outside with marriage with death -- all those are known to the half-literate flipping through the New York Post. Iran's non-genocidal rationales for wanting nuclear technology, however, tend to be ignored or lightly dismissed. A forum that focused on this issue probably would be a lot more interesting than what is planned.

Yet it is Ahmadinejad's essentially indefensible positions on everything else (Holocaust denial, fatwa on Israel, terrorist funding, theocracy and lack of free speech) that render him a person who is so bad, and recognized as such by Columbia's most important constituencies, that the question of whether to have him as a guest is much closer than it is for Rumsfeld.

There's a tightrope that seems to be unrecognized by those who think the best solution is to treat Ahmadinejad as a raving nonentity. To wit, if the United States and its academic institutions take such an attitude toward Iran's president, this is likely to be interpreted as disrespect not only toward him as an individual, but toward Iran and toward Muslims sympathetic to Iran's government generally. It is one thing to say that Ahmadinejad is factually and morally wrong; that should be said repeatedly, whenever possible. It is another to say that he does not belong at a World Leaders Forum, which is the grandiose title of Columbia's event. He is a World Leader, for bet-- well, for worse than his predecessor -- and a posture that he is unworthy of being recognized as such is both unrealistic and unproductive, much like insisting that the People's Republic of China ought not be recognized as China.

In its combination of population size (65 million) and PPP GDP ($599.2 billion), Iran may be the most significant nation represented at the Forum. The other nations -- Turkmenistan (5mil; $42.84 billion), Malawi (13mil; $8.272 billion), Chile (16mil; $202.7 billion), Estonia (1.3mil; $26.85 billion), Georgia (4.6mil; $18.16 billion), Bosnia and Herzegovina (4.5mil; $25.32 billion), and Bangladesh (150 million; $336.1 billion) -- lack Iran's geopolitical importance to the United States. The CIA factbook estimates that as of 2006, Iran had 662,355 Afghan and 54,000 Iraqi refugees.

From within Columbia, therefore, not allowing Ahmadinejad at the World Leaders Forum runs counter to what the university thinks it is doing with the event:

Launched in 2003, the World Leaders Forum is an annual University-wide initiative that helps realize Columbia's commitment to serving as a center for public discussion and debate on the large economic, political, social, and cultural questions of our time that cut across both traditional academic and international boundaries.
The Forum brings together a wide range of governmental leaders, influential citizens, and intellectuals from many nations to examine global challenges and explore cultural perspectives. Throughout the yearlong series of events, Columbia's students, faculty, and alumni, along with members of the wider New York City community, gather to engage in an open dialogue with a variety of world leaders.

The idea here is not to "honor" the leaders, and to the extent that the NY Sun et al. believe that it is, they don't understand the Forum (and probably haven't attended it). Unquestionable, it gives leaders a platform; so does the United Nations and any other organization that includes these countries. And if Ahmadinejad is treated any more politely than a debating opponent ought to be -- for example, if he is given a gift -- then Bollinger will indeed have "honor[ed] the dishonorable." And perhaps outside Columbia, there is no way to see an acceptance of a speaker as anything other than an honor that should be bestowed only on the morally worthy.

Nonetheless, if Bollinger and the university as a whole successfully walk the tightrope, I will not be among the students disappointed by the decision to have Ahmadinejad at the World Leaders Forum.

INCIDENTALLY: I would not have thought to discuss Rumsfeld and Ahmadinejad together had David Bernstein not done so.

Three cheers for non-justiciability

N.D. Cal. Judge Martin Jenkins has granted Defendants' motion to dismiss California's lawsuit against them (California v. General Motors) on the basis of non-justiciability. California had sued six automakers arguing that emissions from the cars they made constituted a public nuisance.

The lawsuit alleged nothing beyond nuisance, and sought to hold the automakers liable for any and all damages arising in California due to auto emissions. Thus, the question did not hinge on whether automakers could have made their cars more fuel efficient, nor whether they hid information on the dangers of carbon monoxide emissions. This suit rested on a simple proposition: car makers make cars, cars make emissions, emissons are bad, car makers should pay for whatever has occurred.

Of course, this decision will be seen by some as a loss for environmental concerns. However, despite understanding the need for action on global warming, I have to support Jenkins choice in passing on the issue. Resolving this suit is not a proper role for the courts.

This case would have called on a District Court judge and maybe a jury to make a determination of whether or not society should use cars. That's it... there is no question about the degree to which we should use cars, nor whether our interests in using cars exceeds other interests we might have (such as clean air), nor whether cars can be cleaner. No, the sole question here is whether use of cars, and the environmental degradation that results, should subject six automakers to liability.

Therein lies the beauty of the non-justiciability decision: this is a public policy question best resolved through political processes, not through the courts. The justiciability doctrine is not often invoked by the courts, but Jenkins made the right call here. If a court can be called on to balance the utility of automobiles versus their environmental impact, what questions will a court not answer? Why bother to have democratic political processes at all if the courts can answer all of our policy questions?

Even assuming (without agreeing) that there may be a valid public nuisance claim (a legal finding that, on balance, the costs of cars in terms of environmental degradation exceeeds the social utility and other considerations of making them available for use), that would still leave us with the question of where liability for cars should lie. Should it lie with automakers? Drivers? What about the UAW?

Heck, why not sue God for making all those dinosaurs decompose into viscous, combustible liquids?

Here's to smacking down a lawsuit that many saw as nothing but a publicity stunt on the part of Ed Jerry Brown, anyway. Perhaps the court will now have time to consider serious environmental litigation .

Fall Call for Bloggers

We're still looking for fresh law students, or law students-to-be, to join De Novo. Consider where De Novo posts have gone:

Armen has been cited in the Virginia Law Review (Matthew Madden, Anticipated Judicial Vacancies and the Power to Nominate, 93 Va. L. Rev. 1135 (2007)).

Sean has been cited by the Ninth Circuit, which fact has been cited in the Yale Law Journal's Pocket Part (Stephen I. Vladeck, That's So Six Months Ago: Challenges to Student Scholarship in the Age of Blogging, 116 Yale L.J. Pocket Part 31 (2006), stating, "See, e.g., United States v. Scott, 450 F.3d 863, 894 n.5 (9th Cir. 2006) (Callahan, J., dissenting from denial of rehearing en banc) (citing Sean Sirrine, U.S. v. Scott, De Novo, Sept. 12, 2005, http://www.blogdenovo.org/archives/001073.html)).

And further down the legal scholarship hierarchy, I've been cited in the Fordham Urban Law Journal (I. India Geronimo, "Reasonably Predictable": The Reluctance to Embrace Judicial Discretion for Substantial Assistance Departures, 33 Fordham Urb. L.J. 1321 (2006)), and the Barry Law Review (Jane M. Godda, Building the Cathedral: Sculpting a Part-Time Legal Education in a Double-Time World, 8 Barry L. Rev. 117 (2007)).

So think of it as improving your chances at being cited by fellow law students, professors and judges -- without having to go through writing a Note.

But It's Still a Wonderful Life

Now that I'm in my last semester and the class with whom I entered has graduated, I'm already feeling nostalgic about law school. I seem to have a much more positive attitude about the experience than most people are willing to express. Nonetheless, the conclusion of Fannie's self description still made me smile:

In sum, law school and its aftermath killed a little part of my soul. I firmly believe that everytime an idealistic and altruistic law student enters law school, an angel loses its wings.

1800Flowers Fraud

Question: if my sister pays 1-800-Flowers to deliver flowers on my birthday, and they neither succeed in such a delivery nor notify me that it was to be made, and they send her a "delivery confirmation" that states, "Your order to PG was delivered on Thursday, 09/13," then has the company acted fraudulently? It was within the company's power to notify me but they did not, and they falsely started that a delivery had been made. I would be less inclined to call fraud had they simply delivered to the wrong person (e.g., a neighbor had accepted the delivery), but it just wasn't done at all. There was no delivery, merely an attempt. The daisies are sitting in the 1-800-Flowers warehouse.

In other contractual birthday thoughts, I highly recommend Cheap Shots on the Lower East Side if you want a dive bar. Not only did they entirely fulfill their advertised promise of unlimited free drinks on one's birthday, the bartender gave my friend a free drink and a free shot after she'd bought two drinks (and those at the Thursday Ladies Drink Half Price rate), and was disappointed to see me go before I'd had so much free booze that I'd stumble.

On the Value of Banning Same-Sex Marriage

I missed an excellent post by Jane Galt on why she doesn't have a position for or against legal recognition of same-sex when it first came out two years ago. I don't know whether her stance has changed since then, but her point is still good:

The argument that gay marriage will not change the institution of marriage because you can't imagine it changing your personal reaction is pretty arrogant. It imagines, first of all, that your behavior is a guide for the behavior of everyone else in society, when in fact, as you may have noticed, all sorts of different people react to all sorts of different things in all sorts of different ways, which is why we have to have elections and stuff. And second, the unwavering belief that the only reason that marriage, always and everywhere, is a male-female institution (I exclude rare ritual behaviors), is just some sort of bizarre historical coincidence, and that you know better, needs examining. If you think you know why marriage is male-female, and why that's either outdated because of all the ways in which reproduction has lately changed, or was a bad reason to start with, then you are in a good place to advocate reform. If you think that marriage is just that way because our ancestors were all a bunch of repressed bastards with dark Freudian complexes that made them homophobic bigots, I'm a little leery of letting you muck around with it.

Certainly I don't believe that my behavior is a guide for that of any other person in society. Indeed, I hope that it isn't such a guide in all respects, as there are many things I don't do (coach children's sports, take in abandoned pets, etc.) that I am very glad to see other people doing.

However, I am wary of thinking that another human being's life is so alien to mine that he must have thought processes that bear no resemblance to my own. Therefore, Jane's argument that a heterosexual high school dropout in Tuscaloosa may be turned off getting married because he knows that homosexuals are getting married -- without any explanation of what the thought process of that Tuscaloosan might be -- isn't very convincing.

In Jane's three historical examples (the increase in income tax, theextension of benefits to unwed mothers and the loosening of divorce law), I could have found someone before each change who would say she would be the person the reformers assumed didn't exist. Socialists in America favored higher tax rates than 10% at the time of the 16th Amendment's writing; 1950s women who'd married worthless husbands just because they had gotten knocked up would have gladly traded those husbands for welfare benefits; 19th century couples who couldn't stand each other but were not egregiously adultering nor severely beating on one another would have said they'd divorce immediately upon the loosening of the laws. That the reformers were unable to imagine the existence of people other than themselves does not meant that such people didn't exist.

If the opponents of same-sex marriage can find me someone who is willing to get married with the marriage law as it is, but definitely won't be getting married if the law changes, I'd take seriously the argument that same-sex marriage will devalue marriage for heterosexuals. As it is, the only way I can imagine holding that position is if my abhorrence of homosexuality is so great that I refuse to be part of anything that homosexuals are (for example, if I were the kind of person who would quit my job if my employer hired homosexuals). Quite possibly such people exist, but I'm unwilling to assume their existence, especially in sufficiently great numbers that it is more important to keep them getting married than to allow same-sex couples to marry.

The social change created by state approval of same-sex marriage seems likely to run the other way, particularly when one looks at Jane's examples: if the state approves X, society is more likely to think X isn't so bad. If a direct tax on non-labor income is approved, Americans' resistance to the notion of such a tax will decrease. If the law grants the support of welfare benefits to unwed mothers, unwed mothers will be more acceptable. If the law permits people to divorce for reasons short of daily battery, divorcing on lesser grounds will garner less criticism.

Therefore, I completely understand why those who do not want homosexuality to become socially acceptable oppose same-sex marriage. Even if they feel sympathy for homosexual individuals and the problems caused by the inability to wed, they think those problems are insufficient to balance out the great evil of accepting homosexuality. For those of us who don't perceive homosexuality qua homosexuality (that is, merely the preference for one sex instead of another, without regard for whatever "lifestyle" is associated with homosexuality) to be so inferior to heterosexuality that it must be discouraged, however, this is not a good argument. I would be delighted if the legalization of same-sex marriage led to greater acceptance of homosexuality, and I think it may have that long-run effect as the Tuscaloosa teenager sees that his gay neighbors are going to work, raising a family and otherwise behaving much like everyone else. Thus they are not to be abhorred, and an institution that includes them need not be avoided.

I don't think that marriage was originated by people who were homophobic bigots; I think that marriage arose in order to ensure that men who impregnated women were responsible for the offspring that resulted. Because in those dark days before baby's daddy testing, men couldn't be sure if a woman's offspring were genetically their own, women began having to promise that they were only having sex with the man they wanted to help them provide for the children. Because a woman who'd given a man a monopoly on her sexuality had done so on the assumption that he would be a good provider and was unhappy when he got another woman knocked up and started dividing his resources between two families, men began having to promise that they were only having sex with the woman whose sexuality they wanted to monopolize. Where there was either a shortage of men, or some of the men had such a surplus of resources that they could provide for multiple families, polygamy was more likely to arise. (I'd consider the practice of many wealthy European men to maintain both a wife and her family, as well as concubines and their children, to be functionally polygamous; the concubine still was expected to be faithful to the provider.)

Because same-sex couples could not impregnate one another, there was no need for law and society to require them to be faithful to and provide for one another. If all the lesbians or gay men in a society were promiscuous, no great harm resulted to the society, but no great benefit redounded from their fidelity, so there was no reason to put any social pressure on them to be sexually faithful or to enter an institution that would require their sexual fidelity. Therefore this argument -- essentially, that straights get pregnant accidentally and thus need marriage to push them together, but gays don't -- is a reasonable one historically.

However, those historical conditions no longer wholly prevail. Men now can know whether offspring are theirs without having had to keep a woman from leaving the harem. Women now are more capable of bringing in the same level of resources as men, so having two women co-parent can provide sufficient resources for raising children. The legal content of marriage has changed. Instead of being necessary to ensure that men weren't wasting their resources on another man's children, and that women weren't wasting their fidelity on a man who was splitting his resources, the law now puts more weight on the couple's non-child-related duties toward one another. Men and women are treated equally in these duties; there is no longer a special duty of support that applies to men but not women, nor a special duty of fidelity that applies more strictly to women than to men.

As parentage has become readily discoverable despite promiscuity, and gender roles have become less important, marriage in American law now focuses on a couple's commitment for mutual support, and to provide as much support for any resulting children as they would have to do if they were not married. (I don't know of a separate neglect crime for married parents that is different for the neglect law applied to nonmarried parents; a custodial parent has an obligation to ensure the child's well-being, and a non-custodial parent must provide financial support.)

And of course, our society is much more complex and sophisticated. When there were merely inept healers rather than hospitals, the legally-enforceable ability to visit a spouse in the hospital or to make end-of-life decisions wasn't important; when there was no insurance, the ability to share coverage wasn't important. Almost all of the multitudinous reasons why same-sex couples want to marry were irrelevant when the institution of marriage first arose.

So the reasons that once existed to apply marriage only to male-female couples have diminished tremendously, while the reasons to allow same-sex couples to marry as well have increased enormously. Again, unless one sees homosexuality as a sufficiently great evil that it needs to remain socially unacceptable, or there are people who abhor homosexuality so much that they would abstain from marriage in order to avoid joining the same legal institution that accepted gay people and such people are so numerous or likely to influence others into the same mindset that their abstention will outweigh the number of homosexuals who will benefit, I see no reason to deny legal recognition to same-sex marriage in 21st century America.

Stupid Hippies

As a growing number of Americans perceive the war in Iraq to have been a mistake, the people who hold this stance most fiercely are becoming increasingly intolerable, and for someone like me who shares their policy position, downright embarrassing. In places like Virginia, they can do no more than catcall the war's supporters, but in California, they can try to turn foreign policy -- an area assigned to the federal government -- into a matter for a state referendum. Along those lines, the comparison drawn by the measure's proponents is particular inapt and inept: "The Senate president pro tem, Don Perata, the Democrat who introduced the 'Vote Us Out of Iraq' bill, said it was odd for Mr. Schwarzenegger to dismiss Iraq as a federal issue when he -- and the state -- have taken such a strong stance on global issues like the environment."

Yes, and the Supreme Court has said that a state can to some extent set its own environmental policy, and even force the federal government to act. A state cannot set its own foreign policy contrary to Congressional legislation, nor act in such a way as to be inconsistent with what appears to be the president's foreign policy. This doesn't even require one to get into preemption in the sense that federal law is supreme over state law; Art. I, Sec. 10 of the Constitution specifically disallows the states from conducting foreign policy. There is no such prohibition on environmental policy, it going relatively unmentioned in the Constitution.

I'm no fan of the Governator, but he won this particular battle hands down.

Elsewhere

The Columbia Federalist Society blog Ex Post has revived for the fall, and I have posted there about the political theories behind different attitudes toward sex crimes, as well as D.C.'s states' rights-centered argument for retaining its gun ban.

Always Be a Good Boy, Don't Ever Play with Law

Georgetown 1L ChaliceChick notes an interesting unauthorized practice of law case, in which a "jailhouse lawyer" had been challenged for conducting legal research, offering legal advice and preparing and signing legal documents on behalf of other inmates. A majority of the Ohio Supreme Court found that the inmates' right of access to legal assistance meant that prisoner Charles Cotton could not be barred from such work by state Board on the Unauthorized Practice of Law, only by prison officials. A dissenting justice wrote, "Our authority, and obligation, to regulate the practice of law does not stop at the prison door. We have the same duty to protect other inmates from incompetent and ineffective lawyering."

Whaaa? Worthy

When the Bureau of Prisons instructed prisons to remove all works from nine publishers that were on a list of dangerous religious reading materials, the ban raised relatively little fuss. Although the right of prisoners to practice their faith has Constitutional backing as well as legislative reinforcement through the Religious Land Use and Institutionalized Persons Act of 2000, that right tends to be manifested through behaviors such as diet, prayer and personal appearance (e.g. Jews' keeping kosher, Muslims' worshipping five times a day or Sikhs' wearing a turban). Even practices related to dangerous, violent and racist belief systems* receive some protection, as with the Five Percent Nation, a nontheistic offshoot of the black supremacist Nation of Islam. However, the right with regard to religious literature is a negative one; a right to receive, rather than a right to have the prison provide such information. A Five Percenter must be allowed to read whatever ridiculous pamphlets he has brought to prison, but the prison has no affirmative obligation to furnish them to him.

Therefore I am inclined to think that the Bush Administration's decision to have the Bureau ban all reading material from prison libraries that does not appear on a short list of what is permitted falls into the category of "stupid, possibly financially biased, but not unconstitutional." (Cf. the awarding of military contracts.) If the Bureau of Prisons wanted to burn every book in the prison libraries, or just the ones with red covers, it could do so without infringing the First Amendment, so long as it didn't single out a particular religion for such persecution. Nonetheless, it is the sort of policy that makes for good Daily Show material: an idiotic overreaction to legitimate concerns about prisons as a breeding ground for conversion to violent religious ideologies. I can see why the government would perceive particular material as dangerous and thus appropriate for excising, but assuming that Reinhold Niebuhr must promote dangerous beliefs because he didn't make a C.S Lewis-heavy list of Approved Christian Theology (and given Lewis's views on the need for women to obey their husbands, I don't see him as a pure beacon of enlightened thought) is grotesquely bad thinking. If the chaplains at individual prisons are so bad at vetting what comes into their libraries that the system needs to be managed from Washington, perhaps the Bureau should look at where it gets the chaplains instead.

* The Southern Poverty Law Center is a wonderful resource, but I concur with Tim Wise that the name doesn't seem apropos:

To that effect, we have groups like the Southern Poverty Law Center spending all their time taking a handful of Nazis to court, tracking hate groups on the Internet, and sending out stamps that say "teach tolerance" to folks on their mailing list so as to raise more money (despite an endowment in the tens of millions of dollars) -- all so they can do anything but help poor people -- which, given their name, I had always assumed was the point. In addition to the Center, there are at least a half-dozen organizations nationwide that focus almost exclusively on doing battle with "the far-right." They can tell you everything you�d ever want to know about even the most insignificant Christian Identity church (members of which believe Jews are Satanic and persons of color are "mud people" without souls), or let you know who attended the most recent meeting at the Aryan Nations compound, all of which might be helpful the next time you�re sitting around playing militia trivia with Morris Dees, but is likely of little use the rest of the year.

Sen. Hatch, IP Reformer

On Friday, the House of Representatives passed the Patent Reform Act of 2007 by a vote of 220-175, favored among Democrats (160 ayes, 58 noes) and disfavored among Republicans (60 ayes, 117 noes). The Act would grant patent rights to the first applicant to file rather than to the first inventor, thus bringing the U.S. in line with other nations' systems. It also would allow third parties to challenge patents through the Appeal Board within the Patent & Trademark Office. I can see why Eli Lilly and other pharmaceutical companies would be wary of this aspect; in recent years, they already have undergone scores of challenges to their patents from generics makers, both domestic and foreign, who want to get their copies on the market sooner. However, if the Act forces challengers to go through the Appeals Board before filing in federal court, this might reduce the cost of such challenges and ensure that they are dealt with expeditiously and by people with more specific expertise in patents than the average federal judge may have.

The Senate version was approved by the Senate Judiciary Committee in July, and is co-sponsored by that Committee's Sens. Leahy and Hatch. Seeing Hatch work to reduce intellectual property litigation is an odd sight, inasmuch as he is a well-known proponent of copyright protection legislation that has tended to increase it, particularly through extending copyright terms and increasing law enforcement powers to prosecute new federal crimes like taping a movie while sitting in the theater watching it. (Though his Family Entertainment Act provided a safe harbor for Utah company Clearplay and others that alter films in order to render them family-safe; as long as creators of works get paid, Hatch sees no problem in mutilating their creations.)

Sunday Quote

From Matt Bai's profile of Giuliani's campaign:

At a family restaurant in Le Mars ("the ice-cream capital of the world"), Giuliani was asked about his religious beliefs. "I believe in God," he said haltingly. "I pray and ask him for help. I pray like a lawyer. I try to make a deal: 'Get me out of this jam, and I'll start going back to church.'" Then he wandered off into a discourse that somehow ended up with an assessment of Times Square and how good he feels that there are so many "functioning theaters" there.

It's odd that former prosecutor Giuliani's comparison of his deal-making was to a lawyer rather than to the plea-bargaining defendant.

WikiTraitor

I realize just how out of touch I am with the "real" left -- the organizations disdaining vague, wishywashy liberalism as typified by the New York Times -- when I get messages like the following from better-connected friends:

I think WL is a front for the CIA or just a project of some other disreputable organization Fwd: [WL-Volunteers] Request: get ready for the flak machine

I don't get why this organization sends emails out so freely to people or why they offer to just have anybody write for them. I mean, I'm all for low access entry points for spreading information. But shouldn't they be more careful when we're talking leaked natural security information? And shouldn't they tell the writers that in this time of paranoia that they could have the US government kick their ass? Also, I'd think that a website dedicated to leaking ultrasecret (and presumably incriminating) information would maintain a more professional tone?

And, most importantly, why the hell is Wikileaks working with the equivalent of the Boston Herald? Their strategy seems very half assed.

Have you all heard anything about Wikileaks? I'm on their general email list out of interest, but I'd never ever volunteer to work for them. I'm really questioning their legitimacy and I don't think they'd protect my anonymity. Also, to be honest, I don't have the background in international affairs or journalism to do a good analysis of the information. Hell, I don't even have enough of a background in ethics to know if I endorse their project! More generally, I don't know my opinion on whether very select pieces of information should remain secret from the public. And I'm sure as hell not going to risk my neck or ending up on some terrorist watchlist unless I'm damned sure about the mission. Oh, also, I'm a wuss, so I'm not going to do anything that might land me on a terrorist watchlist anyway, especially if I'm uncertain of the cause. I like sleeping in and snuggling with the cats and not getting tortured and practicing my civil liberties; I don't think you can do that type of stuff in secret terrorist prisons. (Yes, perhaps some of my rationale for not participating is problematic, but I'm gonna give all the Powers that Be a wide berth of knowing they don't have any reason to blacklist my ass.)

(Also, hello intelligence officials that are probably reading this email! I plan to stay out of trouble! I am too spazzy for any real terrorists to let me hang with them, and in general I don't believe in super radical action as a way to cause change. Also, I'd prefer not to get raped or traumatized by a detention, illegal or otherwise. It would make me lose my faith in democracy and stuffs. K thanks bai.)

At any rate, the whole Wikileaks project is just some interesting food for thought.

---------- Forwarded message ----------
From: Jay < jay@wikileaks.org>
Date: Sep 9, 2007 1:54 PM
Subject: [WL-Volunteers] Request: get ready for the flak machine
To: volunteers@lists.wikileaks.org

The New York Sun has broken our embargo on the Afghanistan article. We feel this was probably an accident, perhaps a confusion as to GMT, or on vs offline editions. It seems to be in good faith, because the article itself is very reasonable. The Sun is a right-of-center broadsheet frequently read by UN personnel stationed in NY. In
response we have released everyone else from the embargo.

It is quite likely that fox news types will soon be onto the story. So, everyone, please lead the debate, get it out there with the truth in it, before it can be twisted by Bill O'Reilly types!

Jay

Whistleblower Site Releases Secret Report on Military Equipment
By CHANNING JOSEPH
Staff Reporter of the Sun
September 9, 2007 updated 12:25 pm EDT

The whistleblowing Web site Wikileaks.org has unveiled secret military documents detailing the complete equipment register for all units managed by the American Army in Afghanistan.

The records -- which are believed to have been leaked by an unnamed government official -- list most of the equipment held in that country as of last April by American and coalition forces, and possibly even the CIA. According to Wikileaks officials, the authenticity of the material has been confirmed by military sources.

"The leaked documents help us to understand how war money is being spent and the nature of operations in Afghanistan," the site's administrators wrote on a Wikileaks page devoted to commentary and analysis of the leaked documents. "They provide a completely objective window into the functioning of various U.S. units from psy-
ops (psychological operations) to Kabul headquarters."

Wikileaks was founded to provide a way for ordinary citizens and government officials to shed light on corruption by anonymously leaking confidential materials to the public. Though the Internet site has not yet made its official debut, this is the second time in just a few days that the site has released a leaked document to the press. The first instance involved a report related to a $3 billion Kenyan government corruption case, which has been subsequently
covered in international news outlets, including a front-page story in Britain's Guardian newspaper.

"Wikileaks has not yet publicly 'launched,'" the site's staff wrote in a press release sent by e-mail. "However, we feel we would be remiss in our obligations to our source to sit on this material any longer."

The newly released Afghanistan documents indicate that the America is using two types of chemical weapons in that country, including 72 M7 grenade dischargers -- gas grenade launchers -- and eight FN303s, "which can fire pepper-spray impregnated projectiles," according to the unsigned Wikileaks article.

In addition, Wikileaks wrote: "Half of all equipment purchases have been diverted to dealing with homemade mobile phone and radio bombs. Not since the U.S. 1945�1951 nuclear buildup has there been such a decisive shift in military purchasing priorities."

The site administrators are encouraging visitors to examine the documents in even greater detail and to post their comments.

"There is much more to be found in this [equipment] list: huge numbers of vehicles, trucks, security equipment, radio equipment, detailed in some cases right down to the level of screws and washers," Wikileaks wrote. "This list, in fact, is a perfect example of the sort of leaked document that would benefit from a global analysis: Everyone can examine it, make comments, discuss what the various units, what their items are, and what they do, and come to conclusions about their strategic, political, and human rights significance."

The Wikileaks article on the leak is available here.

Good Example or Horrible Warning?

I wonder what the folks at Human Rights First, after having made a documentary on the depiction of torture on TV that focuses on "24," think of Georgetown Law adjunct professor Lt. General Walter Sharp's course titled "The Law of 24." A former West Point law of war professor (now also at Georgetown) who assisted Human Rights First with their documentary told them that "24" was a major problem in his classroom because young cadets had gotten the wrong idea about what was permissible. If Sharp presents Jack Bauer as what soldiers may be tempted to do but shouldn't, the course ought to be unobjectionable, but if Bauer -- contrary to what the show's producers and writers claim they are doing -- is held up as non-fantastical, I think there will be some concerns.

PG ♥s Obama, But Not This Much

Despite my fondness for Sen. Barack Obama and skepticism toward most conservative claims that it's a problem for the majority of academics to be liberals, this message on behalf of a professor seeking a student assistant, and sent to all upperclass law students, did give me pause:

a volunteer to do research for the Multilateral Team for the Obama Campaign, on international law and international public policy issues. Since this is political work, students cannot receive either payment or academic credit.

It feels slightly ... suboptimal? ... for such a request for volunteers to be coming from a faculty member, as opposed to a student political organization like the CLS Democrats. Students can opt-out of the CLS Democrats' emails, but not out of the Registrar's. And, yeah, to make the standard whiny College Republican point: we're unlikely to see such a message soliciting help for a Republican's campaign.

Law of Web Design

The Law of War website looks like a good resource, but the person who designed it may deserve the geek-shame equivalent of waterboarding. Red text on top of black and white photo: bad. Requiring a double mouse click on links at the top of each page: bad. Misspelling "hypothecate" on a legal website: bad. On the other hand, site owner Judge Evan Wallach's resume: pretty damn cool. He fought in Vietnam, graduate from Boalt, was a JAG in the Nevada Army National Guard while partner at a Las Vegas firm, and now is a federal judge on the U.S. Court of International Trade. He's also an adjunct at New York and Brooklyn Law, and appears to be using the site as the text for the course.

Et Tu, Hitchens?

I have become inured to the American Family Association's misrepresenations of S.1105, a bill that would add sexual orientation and gender identity to race, color, religion, national origin, gender and disability as biases that, if the motivation for a crime, could increase the penalty and bring it into federal court. Instead of the honorable position that we simply should not have "hate crimes" at all, but should ignore bias as a motive for crime, the AFA has taken a stance solely against including sexual orientation and gender identity in federal hate crimes legislation. Their emails on the topic endeavor to alarm recipients by claiming or implying that criticism of homosexuality will become illegal if S. 1105 is passed. This is irksome, but ignorant fear-mongering crosses all political lines and cannot be driven out of political discourse at the intellectual level occupied by "action alerts," whether emitted by the AFA or MoveOn.org.

However, in Christopher Hitchens's tale of a crime spree, the most shocking item was not that rape, murder and general thuggery were occurring in Oakland, nor that the cops had been late to address it, but this:

This official apathy -- amounting to collusion -- is undergirded by a culture that cringingly insists on "respect" for any organization, however depraved, that can masquerade as "faith-based." If I had stood outside that hideous bakery with a sign saying "Black Muslims Are Racists and Fanatics," I think the cops would have turned up in a flat second and taken me into custody. I might well have been charged with a hate crime. As I have written before and am sure I will write again: This has to stop, and it has to stop right now, before sharia baking comes to a place near you.

Er, exactly what crime does Hitchens think he would be charged with? I realize that as a Brit, he didn't grow up with a First Amendment, but had thought that Slate, upon receiving this column to be posted online, might have informed him of our fancy American inventions like a right to free speech. Had Hitchens stuck to the sign and not said anything, there wouldn't have been even a trumped-up charge of "disorderly conduct" to throw at him. The bakery, like abortion clinics dealing with protestors, might have gotten an order to keep Hitchens a certain distance from their door, but that would have been the extent of it. There is the fighting words exception to the First Amendment, but it generally requires that the unprotected speech be personally abusive and not an "exposition of ideas." If the sort of sign Hitchens hypothesizes carrying were precluded, Nazis and KKK members never would be able to get a rally going.

Slate apparently feels that their editorial duties do not include describing hate crimes legislation honestly when an inflammatory characterization makes for better reading.

On Your Knees, Officer

In the Washington Post, political science professor Aaron Belkin criticizes the standard of evidence by which Sen. Craig was arrested on suspicion of lewd conduct, and eventually pleaded guilty to a misdemeanor charge of disorderly conduct.

Craig's case apparently was handled according to the book. But the use of everyday gestures that fall short of sex to mete out punishment for sexual misconduct illustrates a revealing departure from methods that investigators used to carry out sting operations nearly a century ago. Courts used to require a lot more than the tapping of a toe to sustain a conviction for a morals crime.

However, as implied by the history Belkin presents, in which the government once hired men to have sex with other men in order to prove the latter guilty of morals crimes, there doesn't seem to be much way to prove someone guilty of soliciting illegal sex -- whether with a prostitute or in a public place -- unless the person's solicitation is verbally clear. If, as police and some gay men discussing the case have claimed, restrooms are a site at which illegal sex often is solicited, then signals probably have to be subtle and non-verbal so as not to attract the attention of others. According to at least one gay man, Craig and the officer he was soliciting had gone about as far as possible before actual sexual activity would begin:

Larry Craig then took his hand, palm upward, and ran it along the bottom of the stall divider so that the individual on the other side of the partition could see Larry's fingers making an inviting "come hither" gesture.

This gesture has a precise meaning and is universally understood in the men's-room cruising scene. It translates, "Get down on your knees and place your penis underneath the partition so I can touch or fellate it."

Aside from being simultaneously pitying and grossed out that someone would be so desperate for sex that he'd get down in a public bathroom for it -- a difficult epidemiological decision as to whether the sex with strangers or the intimate contact with a filthy floor would be more likely to cause a bacterial infection -- I wonder what Belkin thinks the officer should have done to secure sufficient evidence for the charge.

Last year I wrote a mock trial criminal problem, in which the defendant was accused of promoting prostitution at a massage parlor and none of the evidence included a verbal offer of sex for money -- only gestures. All four juries, composed predominately of law students, voted to acquit. So I'm aware of legally-trained people's skepticism of the level of evidence required to convict someone as having, beyond a reasonable doubt, solicited sex. However, I also tried to base my problem on men's accounts of how sexual favors at such establishments are offered, and the use of gestures seems to be nearly universal (to avoid prosecution and in some instances because of language barriers). Someone who alleges that such a crime was committed essentially has to engage in the sexual activity in order to prove that that's what was being offered.

Perhaps we should give up trying to prosecute such crimes altogether, and resign ourselves to rampant prostitution in massage parlors and public sex in men's rooms, correcting only those abuses that directly harm participants or violate non-sex laws (such as trafficking violations of immigration law). If we do, however, we should make that decision about public policy openly, not on the basis of whether a particular method of determining the occurrence of solicitation meets Prof. Belkin's standard of evidence.

As BigLaw Goes Corporate, Corporate America Goes BigLaw

An article about vacation policy at IBM reminded me of a conversation I recently had with my mother. She asked me how much vacation first year associates at big law firms got, and I couldn't give her a clear answer because the amount of vacation isn't something that comes up much in discussing the benefits of working at a 200+ attorney outfit. The best way I could sum it up was, "They don't give you vacation, you have to take vacation -- whenever you don't have too much work to take it. But if you find you have enough time for more than a couple weeks vacation each year, you're probably not getting enough work and are in trouble." Unlike most companies, after all, law firms do have to track one form of employees' time at work, because they need to know for how many hours the firm can bill.

[IBM] does not keep track of who takes how much time or when, does not dole out choice vacation times by seniority and does not let people carry days off from year to year.
Instead, for the past few years, employees at all levels have made informal arrangements with their direct supervisors, guided mainly by their ability to get their work done on time. Many people post their vacation plans on electronic calendars that colleagues can view online, and they leave word about how they can be reached in a pinch. ...

But the flip side of flexibility, at least at I.B.M., is peer pressure. Mr. Hanny and other I.B.M. employees, including his assistant, Shari Chiara, say that they frequently check their e-mail and voice mail messages while on vacation. Bosses sometimes ask subordinates to cancel days off to meet deadlines.
Some workplace experts say such continued blurring of the boundaries between work and play can overtax employees and lead to health problems, particularly at companies where there is an expectation that everyone is always on call. ...

Frances Schneider, who retired from an I.B.M. sales division last year, after 34 years, said one thing never changed; there was not one year in which she took all her allotted time off.
"It wasn't seven days a week, but people ended up putting in longer hours because of all the flexibility, without really thinking about it," Ms. Schneider said. "Although you had this wonderful freedom to take days when you want, you really couldn't. I.B.M. tends to be a group of workaholics."